January 11, 2006

If Senate Democrats had set out to portray Judge Samuel A. Alito Jr. as extreme on issues ranging from abortion to government surveillance of citizens, they ran up against an elusive target on Tuesday: Samuel A. Alito Jr. For nearly eight hours, Judge Alito was placid, monochromatic and, it seemed, mostly untouchable.

Unlike the testimony of John G. Roberts Jr., who had often declined to answer questions on various grounds, among them that certain issues might come before him as chief justice or that his older writings did not necessarily reflect his current views, Judge Alito's default impulse frequently seemed to be to try to give a direct response to the senators' often rambling questions.

How disarming! I imagine they didn't expect that. Roberts's performance has become a myth of perfection, so it made sense to assume Alito would ape it, and the Democrats may very well have thought that the Roberts technique would seem less elegant in a New Jersey accent, and they'd get the advantage in a way they failed to do last September when they encountered the ultra-polished Roberts. But Alito found a different path, daring to behave in the Bork mode and actually debate about law. Were the Democratic Senators a bit surprised?

For the most part, his handling of questions from Democrats had the effect of leaving his questioner shuffling through papers in search of the next question.

Ha ha. So they were planning to run out their time insisting that he answer and lecturing him about why he must answer, and then -- damn! -- he answered. What's Plan B?

Asked by Senator Edward M. Kennedy of Massachusetts about an endorsement of "the supremacy of the elected branches of government" in the 1985 job application, Judge Alito simply disavowed it.

"It's an inapt phrase," he said, "and I certainly didn't mean that literally at the time, and I wouldn't say that today. The branches of government are equal."

Mr. Kennedy followed up. "So you've changed your mind?" he asked.

"No, I haven't changed my mind, senator," Judge Alito responded. "But the phrasing there is very misleading and incorrect."

I wonder where Kennedy meant to go with that -- into a demand that the courts defer to Congress even more than they already do? I wonder if those who are working on the Senators' questions are spending the time between Day 2 and Day 3 of the hearings furiously rewriting the script so there are paths to take when Alito answers.

To a large extent, Judge Alito's success at skating though a good deal of the day reflected the quality of the questioning. The senators frequently did not follow up on their own queries, and Mr. Biden in particular devoted most of his 30 minutes to talking, leaving little time for the nominee to speak.

Well, since he didn't go first, maybe Biden saw the potential for embarrassment if he got to an interchange with the nominee and decided to run out the clock with the prefatory blather. I guess that's what's going on in the photograph described in the previous post.

Mr. Schumer, whose questioning left Judge Alito looking wobbly and pale, was an exception, as was Senator Dianne Feinstein of California, who pressed him on his views about the Supreme Court's authority to overrule precedent.

I'll focus on those two when I get to my TiVo later this morning.

Judge Alito's command of the law was impressive, but it did not have Judge Roberts's effortless, Olympian quality.

As I said, Roberts has become a myth. The Adams note that Alito used the term "twilight zone" to refer to the wrong one of Justice Jackson's three categories for analyzing presidential power. They're right. That's a gaffe. The middle category is the "twilight zone," not the third category.

The lure of 50 cameras and the captive audience in the Senate Hart Office Building appeared too much of a temptation for some of Capitol Hill's windiest lions, who began by promising not to run a marathon session of questions, then did so anyway.

Oh, the Senators preened?

At one point Senator Edward M. Kennedy, Democrat of Massachusetts, was even granted two extra minutes from the committee's chairman, Senator Arlen Specter, Republican of Pennsylvania - drawing groans from colleagues, among them Senator Charles E. Schumer, Democrat of New York.

The highest ratio of words per panelist to words per nominee was that of Senator Joseph R. Biden Jr., Democrat of Delaware, who managed to ask five questions in his 30-minute time allotment.

Ha ha. I'm glad somebody's counting these things.

"I understand, Judge, I am the only one standing between you and lunch, so I'll try to make this painless," he began, with some promise.

Mr. Biden then dived into a soliloquy on Judge Alito's failure to recuse himself from cases involving the Vanguard mutual fund company, which managed the judge's investments. After 2 minutes 50 seconds - short for the senator - Mr. Biden did appear to veer toward a question, but abandoned it to cite Judge Alito's membership in a conservative Princeton alumni group. Mr. Biden discoursed on that for a moment, then interrupted himself with an aside about his son who "ended up going to that other university, the University of Pennsylvania."

Judge Alito, who had been sitting without expression through Mr. Biden's musings, interrupted the senator midword, got out three sentences, then settled in for nearly 26 minutes more of Mr. Biden, with the senator doing most of the talking. With less than a minute to spare, Mr. Biden concluded, thanked Judge Alito for "being responsive," then said to Mr. Specter that "I want to note that for maybe the first time in history, Biden is 40 seconds under his time."

How appalling! And complimenting himself, in the third person, in the end, as if he's being charmingly self-deprecating? If you think you can bore and exasperate everyone for half an hour and then pull that off, you're not self-deprecating, you're self-deluded.

While most of the senators were at least as verbose as they were at the September confirmation hearings of Chief Justice John G. Roberts Jr., the crispest was the chairman, Mr. Specter, who dispensed with an introduction on Tuesday and was immediately out of the gate with a question about abortion.

"Judge Alito, do you accept the legal principles articulated in Griswold vs. Connecticut that the liberty clause in the Constitution carries with it the right to privacy?" Mr. Specter asked.

Judge Alito, as Chief Justice Roberts had before him, said that he did, indicating that he at least did not rule out the pivotal legal underpinning of Roe v. Wade, the 1973 Supreme Court case that legalized abortion.

Mr. Specter then moved into the same line of questioning he had used for the chief justice, even displaying the same chart that listed the 38 Supreme Court cases since Roe that affirmed the right to abortion.

Like almost everything else, the chart created an opportunity for more words from members of the committee. As an aide held the chart up behind Senator Orrin G. Hatch, Republican of Utah, who opposes abortion rights, Senator Patrick J. Leahy, Democrat of Vermont, who supports them, was moved to crack, "Just balance that on Orrin's head."

Mr. Specter, who also supports abortion rights, chimed in, "It's a good photo-op for Senator Hatch."

Mr. Hatch, grinning, would have none of it. "He wants that over by Leahy," he said.

Funny. I've read this part of the transcript, and I think Specter did an excellent job of managing the presentation of the abortion material. Clearly, this was designed very well to build a foundation for Alito's testimony and give him security on the most difficult issue.

The most indignant questioner was Mr. Leahy, who went on a ramble through his own Irish and Italian roots and compared the discrimination that his parents and grandparents faced with the hard-luck story of Judge Alito's father, who came to the United States from Italy as an infant, grew up in poverty and had a difficult time getting a teaching job.

Leahy's Italian? Interesting.

Given that history, Mr. Leahy said, he was particularly troubled that Judge Alito would have joined the conservative college group, Concerned Alumni of Princeton University, which resisted the admission of women and members of minorities.

"Why in heaven's name, Judge, with your background and what your father faced, why in heaven's name were you proud of being part of C.A.P.?" Mr. Leahy asked.

Judge Alito, who acknowledged having listed the group on a 1985 job application, responded, "I have racked my memory about this issue, and I really have no specific recollection of that organization."

I would have followed up with a question about what he means by "specific recollection." Why add the modifier "specific" unless there is some recollection?

The judge's toughest questioner was Mr. Schumer, who late in the day bored in with follow-up after follow-up about whether Judge Alito thought that the Constitution protected the right to abortion. In 1985, Judge Alito - then applying for a position in the Justice Department - contended that the Constitution did not guarantee such a right.

But on Tuesday, Judge Alito repeatedly refused to say what he now thought of the issue, exasperating Mr. Schumer.

"I do have to tell you, Judge, your refusal I find troubling," he said, likening the side-stepping to the response that might have been given by a friend who had told him 20 years earlier, "You know, I really can't stand my mother-in-law.'

Mr. Schumer spun out the rest of the hypothetical: "And a few weeks ago, I saw him and I said, 'You still hate your mother-in-law?' He said, 'Well, I'm now married to her daughter for 21 years, not one year.' I said, 'No, no, no, do you still hate your mother-in-law?' And he said, 'Mmm, can't really comment.' "

Mr. Schumer paused. "What do you think I'd think?" he asked the nominee.

Mr. Schumer, in the theme of the day, cut him off. "Let me just move on," he said. Mr. Schumer seemed to notice that Judge Alito's mother-in-law was in the hearing room.

"I have not changed my mother-in-law," Judge Alito offered.

As always, the senator had the last word. "I'm glad you haven't, because she seems nice," Mr. Schumer said.

That's what passes for tough questioning these days? Cornball humor? And by the way, Senator Schumer, hating one's mother-in-law was stock comic material back in the 1950s and 60s. Then, there was a little something called the Women's Movement, and after that, it became kind of uncool to just tap into that. I just love the irony that the Senator who is offering to be the champion of women's rights sounds like the old comics who used to piss me off 35 years ago.

"Alito seems to be significantly more forthcoming than Roberts, and he is offering solid defenses of his prior decisions...Ann Althouse tells it like it is, and has brilliant commentary: "But Alito found a different path, daring to behave in the Bork mode and actually debate about law. Were the Democratic Senators a bit surprised?"